The Last Straw?

The November 19 Haditha massacre by US Marines, and the subsequent official attempts to cover it up, could be one insult too many for the new Iraq government. All available evidence points to a cold and calculated set of revenge killings by a team of soldiers who themselves had been pushed over the edge by one IED too many. The soldiers will certainly face courts martial, and the charges will probably include murder.

Assuming the truth of the allegations, the military proceedings will be one significant step towards justice. But the military chain of command should also be held accountable. In tort law, when multiple parties take part in action which causes harm they are held to account on a “joint and several liability” basis. For example, if two people throw rocks at a window and only one rock causes damage, they will both be held responsible. Like most crimes, the Haditha case presents two sets of blame: one for the individuals who committed the act and one for the social framework in which they acted. Just as a typical instance of crime is, from the largest perspective, the joint responsibility of the criminal and the society that produced them, the Marine Corp and the military in general should not escape blame.

In addition to military proceedings, the soldiers could conceivably face murder charges in an Iraqi court. Even though the military would no doubt decline to bring its Marines back to Iraq to face charges, a decision by the Iraq government to charge them could represent the tipping point to open hostility between their government and ours. At the various stages of transition to sovereignty for Iraq, the US sought a “status of forces agreement” (SOFA) from the Iraqi (proto-) government. Generally, our military will not operate in a foreign country without a SOFA, and one key element is always the granting of immunity for actions of soldiers committed in the course of their service.

But we were never able to negotiate a SOFA, so this line of defense to an Iraq prosecution is closed. Instead we placed a purported absolute immunity for our troops in Coalition Provisional Authority Order Number 17, part of the hybrid colonial-transitional law instituted by the US after the 2003 invasion. It is an open question whether this Order is binding on the Iraq government that is now being formed. If not, or if Iraq argued that the massacre was outside “the course of service,” charges could be filed in an Iraqi court. As the facts about this case and the apparent cover-up attempt percolate around the world, the killings could become the last straw in the relations of the US and Iraq governments.